Between 1776 and 1789 the American people constituted themselves a
nation by creating republican governments in the thirteen former English
colonies and then, in the Constitutional Convention, by transforming the Union
of confederated states into a genuine law-giving government. The novelty of
this achievement was epitomized in the seal of the new nation, "Novus Ordo
Seclorum," which announced "a new order of the ages." Yet in founding political
societies Americans pursued a goal that had occupied Western man since
antiquity: the establishment of government power capable of maintaining the
stability and order necessary to realize the purposes of community, yet so
defined and structured as to prevent tyranny. This age-old quest for the forms,
procedures, and institutional arrangements most suitable for limiting power and
implementing a community's conception of political right and justice, we know
as constitutionalism. It remains to consider American constitution-making in
the perspective of Western and specifically English constitutionalism, and to
reflect on its significance in shaping political life in the United States.

Constitutionalism takes as its purpose resolution of the conflict that
characterizes political life and makes government necessary, through procedures
and institutions that seek to limit government and create spheres of individual
and community freedom. Based on the paradoxical idea that the power to make law
and to rule can be at once sovereign and effective, yet also defined,
reasonable, and responsible, constitutionalism contains an inherent tension
that sets it against utopianism and anarchism, which deny the reality of power,
and absolutism and totalitarianism, which tolerate no limitations on power.
Nevertheless, although constitutionalists can in retrospect be seen as sharing
common assumptions, differences among them have sometimes led to irreconcilable
conflict. One such division occurred in the eighteenth century when the
American people separated from the English nation and adopted a new type of
constitutional theory and practice for the conduct of their political life.

Perhaps the most obvious feature of American constitutionalism was its
apparent dependence upon legally binding written instruments prescribing the
organization of government and fixing primary principles and rules to guide its
operation. Texts had of course long been used in law, government, and politics,
and the English constitution comprised written elements. Americans' resort to
documentary, positive-law techniques of government was more systematic and
complete than any previous undertaking, however, so much so as to amount to
constitutional innovation. Following the American example, peoples everywhere
in the modern world have adopted the practice of forming governments by writing
constitutions. But Americans in the founding era did more than invent a new
approach to the old problem of limited government. Their constitution-making
was informed with a new purpose — the liberal purpose of protecting
the natural rights of individuals. American charters of fundamental law were
not simply ordinances of government; they were also constitutions of liberty.
The meaning of liberty, especially the relation between the individual and the
community that was central to any practical definition of it, was a deeply
controversial issue that divided Americans in state and national
constitution-making. The adoption of the federal Constitution in 1787, however,
marked a decisive shift toward protection of individuals in the pursuit of
their interests, and away from enforcement of community consensus aimed at
making citizens virtuous and moral, as the central purpose of constitutional
government in America.

American constitutionalism is thus concerned with organizational and
procedural matters, on the one hand, and with substantive questions of
political purpose, on the other. Most of the time constitutional politics in
the United States deals with the former concern, as groups and individuals
assert or deny the existence of proper governmental power or challenge methods
used to employ it. Nevertheless, constitutionalism is ultimately normative and
purposive. Every state may be said to have a constitution, in the sense of an
institutional structure and established procedures for conducting political
affairs. But not every state is a constitutional state. In the Western
political tradition constitutional government is defined by forms and
procedures that limit the exercise of power. American constitutionalism goes
farther by pursuing not only the negative goal of preventing tyranny but also
the positive end of promoting individual liberty, both in the passive sense of
protection against government power and in the active sense of participation in
the decisions of the political community. Viewed in this light, American
constitutionalism raises basic questions of political value and purpose that
connect it with the mainstream of Western political philosophy.

In the history of constitutionalism the great problem has not been to
create power but to define and limit it. The Western constitutional tradition
has employed two methods toward this end. The first is the theory and practice
of arranging the internal structure of government so that power is distributed
and balanced. In Greek political thought the purpose of politics was to promote
virtue or moral excellence in men, and the founder of a political community was
advised to balance the classes of society — kingship, aristocracy, and
democracy — in a structure of mixed government which permitted each
element to contribute to this end. The pursuit by each class of its special
aptitude or interest prevented the others from seeking merely private ends,
transforming the polity into despotism, oligarchy, or mob rule depending on
which part of society dominated. A second method of constitutionalism has been
to subject government to legal limitations, or the rule of law. Roman juristic
writing, which regarded natural law as a standard of reason and equity for
judging the validity and legitimacy of government enactments, is usually
considered the source of the rule-of-law idea. Significant practical steps
toward achieving it were taken in medieval England as common law courts created
a sphere of law and legal right protecting individual property and liberties
against government and constituting a limitation on royal discretionary
authority. Further contributing to the rule-of-law tradition was the tendency
of courts to regard basic principles of common law adjudication as embodying
reason and justice, and hence as a kind of fundamental law limiting the acts of
government.

English constitutionalism in the period of American colonization
comprised both strands of the constitutional tradition. The common law courts
in the early seventeenth century insisted on the superiority of law over the
royal prerogative. Sir Edward Coke gave famous expression to the idea of a
higher law controlling government in asserting that " 'sovereign power' is no
parliamentary word.... Magna Charta is such a fellow, that he will have no
sovereign." Coke also said that "when an act of Parliament is against common
right and reason, or repugnant, or impossible to be performed, the common law
will controul it and adjudge such act to be void."1 Parliament
itself, however, subsequently claimed supremacy in lawmaking, and vindication
of its authority in the Revolution of 1688 effectively precluded development of
the rule of law into a politically relevant form of higher-law
constitutionalism. An internally balanced institutional structure, expressed in
the revised and revitalized theory of mixed government in the eighteenth
century, became the principal model of constitutional government in
England.

Essentially descriptive in its connotation, the English constitution was
the structure of institutions, laws, conventions, and practices through which
political issues were brought to resolution and carried out in acts of
government. Yet the constitution was also prescriptive or normative, or at
least it was supposed to be. Lord Bolingbroke's well-known definition pointed
to this quality: "By constitution we mean ... that assemblage of laws,
institutions and customs, derived from certain fixed principles of reason,
directed to certain fixed objects of public good, that compose the general
system, according to which the community hath agreed to be
governed."2 More specifically, as Montesquieu, Blackstone, and other
eighteenth-century writers affirmed, the purpose or end of the English
constitution was civil and political liberty.3 From the standpoint
of modern constitutionalism the legislative supremacy that contemporaries
regarded as the foundation of English liberty was incompatible with effective
restraints on government. Nevertheless, Parliament was believed to be under a
moral obligation to protect the rights and liberties of Englishmen, and the
sanctions of natural law were still seen as effective restraints. Moreover,
political accountability to public opinion through elections operated as a
limitation on government. Englishmen thus continued to see their constitution
as fixed and fundamental, notwithstanding legislative sovereignty.4

American constitutionalism began in the seventeenth century when English
settlers founded political societies and institutions of government in North
America. Two things stand out in this early constitutional experience. First,
the formation of government was to a considerable extent based on written
instruments. In corporate and proprietary colonies the founding documents were
charters granted by the crown conferring enumerated powers on a particular
person or group within a designated geographical area for specific purposes.
Under these charters the colonists adopted further agreements, organic acts,
ordinances, combinations, and frames of government giving more precise form to
political institutions. In religiously motivated colonies government was more
clearly the result of mutual pledging and association under civil-religious
covenants. American colonists thus used constitutionlike instruments to create
political community, define fundamental values and interests, specify basic
rights, and organize governmental institutions.5

The second outstanding fact in early American constitutional history was
substantial community control over local affairs. To be sure, the colonies
employed the forms and practices of English government and generally emulated
the metropolitan political culture. Their institutions at the provincial and
local levels were patterned after English models, and the theory of mixed
government and the balanced constitution was accepted as valid. Yet discordant
tendencies pointed to a distinctive course of constitutional development. The
fact that in most colonies the power of the governor depended on royal
authority while the power of the assembly rested on a popular base, as well as
frequent conflict of interest between them, made separation and division of
power a political reality discrepant with the theory of mixed government.
Furthermore, popularly elected assemblies responsive to growing constituencies
and enjoying de facto local sovereignty under written charters introduced a
republican element into American politics.

As English subjects, Americans believed they lived under a free —
and fixed — English constitution. Long before the American Revolution
they expressed this view in the course of conflicts with imperial officials.
Numerous writers asserted that the constitution was a contract between the
people and their rulers; that the legislature could not alter the fundamental
laws from which government derived its form, powers, and very existence; that
government must exercise power within limits prescribed by a civil compact with
the people. Moreover, the compact chosen to organize and direct government, as
a colonial sermon of 1768 put it, must coincide with "the moral fitness of
things, by which alone the natural rights of mankind can be
secured."6 Disputing the descriptive English constitution that
included parliamentary sovereignty, Americans were coming to think of a
constitution as normative rules limiting the exercise of power for the purpose
of protecting the people's liberty, property, and happiness.

In declaring their independence from England, Americans in a sense
reenacted the founding experience of the seventeenth century. They took what
their history and political circumstances determined to be the logical step of
writing constitutions to organize their political communities. Before issuing
the Declaration of Independence, Congress recommended that the colonies adopt
governments that "in the opinion of representatives of the people, best conduce
to the happiness and safety of their constituents in particular, and America in
general."7 Although some argued that the people acting in convention
should form the government, political exigencies and Whig political theory
conferred legitimacy on legislatures, which in all but two instances were
responsible for writing or adopting the first state constitutions.

The most distinctive feature of the state constitutions — their
documentary or positive character — followed the decision to form new
governments as a matter of course. Given the long tradition of founding
documents in America, it seemed obvious that the purposes of political
community and limitations on government could be achieved better by writing a
constitution than by relying on an unstipulated, imprecise constitution like
England's, which did not limit government and was not really a constitution
after all. Though consisting in part of written documents, the latter was too
subjective, ultimately existing in men's minds and premised on the idea that
"thinking makes it so."8 Americans insisted in contrast that the
principles and rules essential to organizing power and preserving liberty be
separated from the government and objectively fixed in positive form. Old in
the tendency it reflected though new in its comprehensive application, American
constitutionalism rested on the idea that "saying makes it so," or at least the
hope that putting something in writing so it can be authoritatively consulted
makes it easier to achieve specified ends.9

Professor Lutz's illuminating research has shown that the state
constitutions stand in direct line of descent from colonial founding documents
which created political communities and established institutions of government.
One type of founding document (compact, covenant, combination, agreement)
signified mutual promise and consent by which individuals formed a political
community and identified basic values, rights, and interests. A second type of
document (enactment, ordinance, frame, constitution) specified governmental
institutions.10 Half the state constitutions written between 1776
and 1789 were described as compacts and contained bills of rights that defined
basic community values. In the other constitutions the design of government
received principal attention. All the constitutions reflected tendencies of
previous political development; none created institutions on a completely clean
slate. This fact appeared more clearly in documents that were concerned mainly
with establishing a framework of government. In these more modern documents,
which anticipated the course of American constitutional development, community
consensus yielded in importance to protection of individual rights as the main
purpose of constitution-making.

In a formal sense American constitutionalism consisted in the
stipulation of principles, institutions, and rules of government by the people
or their representatives in the state legislatures. As constitutions are
distinguished and ultimately justified by their political purpose and effect,
however, the political character of the revolutionary founding documents
requires consideration.

Historical scholarship in the past two decades has firmly established
republicanism as the political philosophy of the American Revolution. Although
lacking in precise meaning, the concept is most accurately defined as
government resting on the consent of the people and directed by the public will
expressed through representative institutions. In the perspective of Western
political thought republican philosophy was formulated in the seventeenth
century to defend liberty against absolutism. The state constitutions were
republican and liberal insofar as they limited government by prescribing public
decision-making procedures that prevented government officials from
aggrandizing power for private benefit rather than the public good. The
constitutions were liberal in yet another sense in confirming and extending the
right of political participation that according to republican philosophy
constituted true liberty for individuals. In many respects, however, state
constitutionalism in the revolutionary era was a doctrine of community power
and control that restricted individual rights in a way that would now be seen
as illiberal.

Under the state constitutions the most important power in modern
government — the power to make law and compel obedience — was
lodged in the legislature. Unimpeded by internal governmental checks under the
extreme version of the separation of powers that prevailed in the first phase
of state-making, and sustained by presumptive identity with popular sovereignty
as the source of political authority before the rejection of monarchy,
legislatures acted forcefully to promote public virtue and the common good.
Requirements of public virtue frequently took the form of restrictions on
individual liberty through sumptuary laws and statutes regulating the transfer
and use of property. Bills of rights that were part of state constitutions had
little effect in curbing legislative power because they were treated as
hortatory rather than legally binding. In the name of popular sovereignty and
patriotism, state legislatures fashioned a constitutionalism of unity and power
in government.

The concentrated power of republican virtue acting through institutions
of community control was a useful and perhaps necessary expedient in the
wartime emergency. In the doctrines of state sovereignty and the police power,
revolutionary republicanism entered into the American constitutional tradition,
and it has offered a compelling model of constitutional government throughout
our history to reformers and radicals on both the left and the right. However,
the actions of the state legislatures too plainly contradicted the
constitutional meaning of the Revolution to become accepted as the principal or
exclusive expression of American constitutionalism. That meaning was nowhere
better stated than by the Massachusetts General Court in its Circular Letter of
1768, which declared:"... in all free States the Constitution is fixed; &
as the supreme Legislative derives its Power & Authority from the
Constitution, it cannot overleap the Bounds of it, without destroying its own
foundation."11 Yet this was precisely what was happening in the
American republics.

The state constitutions may have been fundamental law in the sense of
ordaining a framework of government, but they were not fundamental in the sense
of controlling legislative power. In all but two states the constitution was
written by the legislature and could be altered or abolished by that body if it
so chose. More than language of urging and admonition, contained in many of the
constitutions, was needed to transform them into effective restraints on the
actual exercise of power. Nor was the technique of internal institutional
balance effectively employed to limit the state legislatures. In 1784 South
Carolinian Thomas Tucker echoed the complaint increasingly heard in other
states when he criticized the people of his state for deriving their ideas of
government too much from the British constitution, and giving the legislature
powers formerly exercised or claimed under a monarchical government. Tucker
argued that the South Carolina constitution, written and adopted by the
legislature, was not founded on proper authority. He recommended a popular
convention to amend the constitution, "fixing it on the firm and proper
foundation of the express consent of the people, unalterable by the
legislative, or any other authority but that by which it is to be
framed."12

Attempts to restrict state legislative power in the 1780s broadened and
reformed American constitutionalism. As Tucker suggested, writing and amending
constitutions by popularly elected conventions clarified the distinction
between legislative law and fundamental or paramount law. Massachusetts in 1780
and New Hampshire in 1784 wrote their constitutions in conventions and required
them to be ratified by the people in special elections. In theory this was the
most effective way to make the constitution an antecedent higher law secure
against legislative alteration. Further restriction of legislative power
resulted from changes in the internal structure of government. Executive
officers were given greater powers as checks and balances — that is, a
partial and limited sharing or mixing of functional powers among the
departments — were introduced in some states as modification of the
separation of powers. Bicameralism, a carry-over from colonial government, was
recognized as a means of making legislative action more deliberate. And courts
began to play a more prominent political role by treating constitutions as
higher law in relation to legislative enactments.

So strong was the tradition of community self-government under
legislative sovereignty, however, that it could not easily be dislodged as the
main reliance of constitutionalism. Certainly little could be done to alter it
by isolated efforts in the several states. Effective reform, if that was
needed, could come only from an interstate collaboration working through the
state system created by the colonies when they declared their independence.
Heretofore peripheral to republican political development, the union of the
states in the Confederation became the focus of constitutional change.

The Continental Congress was formed by the colonies in 1774 as a
coordinating and advisory body to protect American interests and eventually to
pursue the cause of national independence. Exigencies of war and common
concerns among the states gave Congress political power, which it exercised
through informal rules and practices that were codified in the Articles of
Confederation. Considered from a constitutional perspective as a limiting grant
of power, the Articles were inadequate because, while they gave Congress
ostensible power to do many things, they did not confer the lawmaking authority
that is essential to government. Congress could at best make resolutions and
recommendations, which in practice amounted to requests that the states could
ignore. The Articles were unconstitutionlike in consequence of having been
written by Congress and ratified by the states, rather than based in any direct
way on popular authority. They were also unconstitutionlike with respect to
institutional structure. Whether considered analogous to a legislative or
executive body, Congress was the sole governmentlike organ, and only an
evolving departmental system saved it from complete incompetence.

As an alliance or league of friendship (the description used in the
document), the Articles were a more successful founding instrument. Yet in the
form given it in the Articles, the Confederation was incapable of addressing in
a constructive manner the defects in American government revealed in the
actions of the states. The confederacy provided a field of political action,
however, on which the reform of republican constitutionalism could take place.
The practical impossibility of amending the Articles in order to strengthen
Congress having been demonstrated, and insecurity of liberty and property in
the states apparently increasing, proponents of constitutional reform turned a
last-ditch desperation move — the calling of a convention of the states
at Philadelphia in May 1787 — into an enduring achievement of
statesmanship and constitutional invention.

Perhaps most significant, the Framers gave institutional expression to
the idea that a constitution, in order to function as a limiting grant of
power, must be higher as well as fundamental law. In addition to originating or
organizing power, it must be maintained separate from and paramount to
government. In a formal sense the Constitution as a founding document was
superficially similar to the state constitutions. A preamble explained the
reasons for the document, proclaimed the existence of a people and political
community, defined specific purposes, and ordained a framework of government.
In reality, however, the Framers departed from the model of the state
constitutions. It was unnecessary to return to the fundamentals of the social
compact and the purposes of republican government, as state constitution
writers to varying degrees were inclined to do. The authors of the Constitution
observed that they were not addressing the natural rights of man not yet
gathered in society, but natural rights modified by society and interwoven with
the rights of the states.13 They knew that the nation they were
creating — or, to be more precise, whose existence they were recognizing
— was amorphous, loosely related in its constituent parts, and united by
few principles and interests. It was far from being the kind of cohesive,
integrated community that the states by contrast seemed to be, and most unlike
the nation-state communities of Europe. Hence the Framers briefly addressed in
the Preamble those few basic unifying purposes and values — liberty,
justice, domestic peace, military defense, the general welfare — and gave
virtually the entire document to stipulating the institutions and procedures of
government. As fundamental law the Constitution thus was less a social compact
for a coherent, like-minded community, and more a contractlike specification of
the powers, duties, rights, and responsibilities among the diverse polities and
peoples that constituted the American Union.

Far more effectively than writers of earlier founding instruments, the
Framers made the Constitution a paramount, controlling law. In a practical
sense this boiled down to a question of law enforcement. Creating a real
government to operate directly on individuals throughout a vast jurisdiction
raised a new and potentially difficult compliance issue, but this received
little attention at the convention. It was the old compliance problem of the
states that stood in the way of making the Constitution binding and effective.
At first the delegates considered a congressional veto on state legislation to
deal with this issue. Rejected as impracticable, the veto was replaced by the
supremacy clause (Article VI, section 2), stating that the Constitution, laws
made in pursuance of it, and treaties made under U.S. authority "shall be the
supreme Law of the Land; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding." This language expressed the paramountcy of the federal
constitution over the states, and by inference over national legislative law as
well. Not explicitly stated but implied in the judicial article was the idea
that the superior force of the Constitution depended on its application and
interpretation by the courts.

The higher-law character of the Constitution was further affirmed and
institutionalized in the method of its drafting and in provisions for its
ratification and amendment. Although delegates to the Philadelphia Convention
were appointed by the state legislatures rather than elected by the people, the
Constitution was a more genuine expression of the will of the people than were
the Articles of Confederation, which were written by Congress. It has always
been difficult for historians convinced of the democratic character of the
Articles to admit this fact, but the Framers' acknowledged apprehension about
unlimited popular rule does not gainsay their commitment to the republican idea
that government derives its just powers from the consent of the governed.
Consistent with this commitment, institutions of direct popular consent that
were still exceptional at the state level were incorporated into the national
constitution. Ratification would be decided by conventions in the states,
presumably popularly elected. Amendment of the Constitution could occur through
popular approval, in state legislatures or special conventions, of proposals
recommended by Congress or by a convention to be called by Congress on the
application of two-thirds of the state legislatures. The superiority of the
Constitution to legislative law was enhanced by this provision for its
amendment, since an utterly fixed and inflexible political law would become
irrelevant to the task of governing an expanding society. If the Constitution
required change, however, the people must amend it. Thus were popular
sovereignty and the higher-law tradition incorporated into American
constitutionalism.

To make the Constitution paramount law in operational fact, however, it
was not enough to assert its supremacy and assume that the people's innate
law-abidingness would give it effect. This was to rely on "paper barriers,"
concerning the efficacy of which there was much skepticism among the Framers.
It was necessary also to structure the organs of government so that power would
be internally checked and limited.

A persistent theme in constitutional theory since the late nineteenth
century has been that power should be concentrated and unified — the more
so the better, in order to deal with social problems — provided only that
government be kept responsible through institutions of political accountability
and the rule of law. Although the Framers' objective was to create coercive
authority where none existed, they rejected concentrated sovereign power as a
proper constitutional principle. Delegated, divided, reciprocally limiting
power formed the motif of their institutional design.

Unlike the state constitutions, which organized the inherent plenary
power of the community, the Constitution delegated specific powers to the
general government The contrast was most significant in the plan of the
legislative department, to which the state constitutions assigned "the
legislative power" and which the federal constitutions defined by the
enumeration of congressional powers Stable and energetic government seeming to
require a strong executive and an independent judiciary, the Constitution made
grants of power of a more general nature to these branches, which under the
separation of powers were a counterweight to the lawmaking department The
separation principle by itself, however, as the state experience showed, was
not a sufficient limitation on legislative power Accordingly, checks and
balances, by which each branch was given a partial and limited agency in the
others' power, as in executive participation in legislation through the veto or
legislative judging in the impeachment process, built further restraints into
the Constitution.

The structure of the Union of course presented the most urgent question
of institutional arrangements affecting the constitutional reality of a supreme
political law A division of power was already evident in the plan of the
Articles of Confederation, what was needed was to transform the Union's
political authority into the genuine power to impose lawful requirements on its
constituent parts. This was achieved by reconstituting the Confederation as a
compound republic, based on both the people and the states Once this was
accomplished, the pertinent fact for the paramountcy of the Constitution was
the division of sovereignty By giving the central government power over objects
of general concern and allowing the states to retain almost all of their
authority over local matters, the Framers divided sovereignty, thereby
effectively eliminating it from the constitutional order Arguments were certain
to arise about the nature and extent of the powers of the several governments
in the American state system, but the effect of such controversy would be to
focus attention on the Constitution as the authoritative source of answers to
questions about the rights of constituent members.

The Constitution was both fundamental and higher law because it
expressed the will of the people, the ultimate source of authority in America
But it would truly limit power only if it was superior to the people themselves
as a political entity, as well as to the legislative law At the time some
theorists of popular sovereignty argued that the people could alter their
government at will, exercising the right of peaceful revolution and
disregarding legalities of form and procedure, even as the Framers did in
drafting and securing ratification of the Constitution against the express
requirements of the Articles of Confederation

However we view their action — as illegal, unconstitutional,
revolutionary, or merely statesmanlike — the authors of the Constitution
rejected the notion of unlimited popular sovereignty They provided restraints
on the people in the form of a limited number of offices, long terms of office,
indirect elections, large electoral districts, and separated and balanced
departments of government Although these provisions have often been viewed as
antidemocratic and in conflict with republican theory, they are more accurately
seen as modifying the popular form of government adopted during the Revolution
The Framers' intent, as James Madison wrote in The Federalist #10, was
to supply "a republican remedy for the diseases most incident to republican
government "14 And one should not forget that despite careful
distribution and balancing of authority, Congress remained potentially the most
powerful branch of the government, most responsive to the people and possessed
of the lawmaking power.

Making the Constitution effective as a permanent higher law involved
matters of form, procedure, and institutional structure Yet as procedural
issues carry substantive implications, and means sometimes become ends in
themselves, it is also necessary to ask what a constitution is for. To prevent
tyranny, the constitutionalist goal, is to create a space in which differences
among people become manifest, in which politics can appear and questions of
purpose arise If running a constitution always reflects political concerns,
making a constitution is all the more a form of political action that derives
from or partakes of political philosophy We thus consider the purposes and ends
of the Framers' constitutionalism.

If the end of the English constitution was acknowledged to be political
freedom, Americans were all the more emphatic in declaring liberty to be the
purpose of their constitutions Moreover, if the purpose of politics in modern
times, as the history of political thought teaches us, is to protect men's
natural rights rather than to make them virtuous and good as the ancients
thought, then American constitutions were liberal in purpose. Yet the concept
of liberty, universally embraced as a political good, can obviously be defined
in different ways And while recognition of natural rights gave modern politics
a new purpose, it is equally true that virtue and moral excellence did not
disappear from political discourse In light of these considerations we may
discern two conceptions of political freedom in the constitutionalism of the
founding period The first refers to the liberty of self-governing political
communities, which were still thought to have an obligation to make men
virtuous and on which individuals depended for their happiness and well-being
The second conception of freedom rests on the primacy of natural rights and
generally asserts individual liberty over community consensus as the purpose of
government.

Although these conceptions of liberty stand in theoretical opposition to
each other, they coexisted in the Revolutionary era. After protesting imperial
policies in the language of English constitutional rights, Americans justified
national independence by appealing to universal natural rights. Wartime
exigencies required decisive political action, however, which was based on the
right of local communities to control individuals for the sake of the common
good. States interfered with the liberty and property of individuals by
controlling markets, restricting personal consumption, awarding monopoly
privileges, and limiting imports and exports. They also regulated the speech
and press freedoms of persons suspected of disloyalty to the patriot cause. In
many ways Revolutionary republicanism subordinated the rights of individual
citizens to the community, defining true liberty as the pursuit of public
happiness through political action.

Reacting against state encroachments on liberty and property, the
Constitution makers of 1787 emphasized protection of individual rights rather
than promotion of virtue and community consensus as the purpose of government.
Rather than an unattainable ideal of public virtue in ordinary citizens, they
appealed to enlightened self-interest as the social reality on which the
Constitution would rest. The Framers recognized factional conflict as a
limiting condition for creating a constitution, yet also as an opportunity for
broadening and redefining republican government. Alongside the communitarian
idea, which remained strong in many states, they created a new constitutional
model in the complex and powerful government of the extended republic, based
partly on the people yet so structured and limited that individual liberty,
property, and pursuit of personal interests would be substantially protected
against local legislative interference. This is not to say that mere private
enrichment at the expense of the community good or general welfare was the end
of the Constitution. The concepts of virtue and the public interest remained
integral to political thought and discourse. But virtue assumed a new meaning
as the prudent and rational pursuit of private commercial activity. Instead of
telling people how to live in accordance with a particular conception of
political right or religious truth, the Framers promoted ends believed
beneficial to all of society — peace, economic growth, intellectual
advancement — by accommodating social competition and upholding citizens'
natural rights against invasion by the organized power of the community,
whether local, state, or national.

The Founding Fathers are often seen as antidemocratic because they
created a strong central government, removed from direct popular and local
community control, which they expected to be managed by an aristocratic elite.
Notwithstanding its foundation in popular sovereignty and protection of
individual liberty and rights, the Constitution in this view contradicted the
real meaning of the Revolution, defined as rule by local communities guided by
republican civic virtue. Yet while the Revolution stood for government by
consent, there is no sound reason for regarding Revolutionary state-making as
the single true expression of the republican principle. It was an essential
part of that principle that government should operate through law to which all
were subordinate, both citizens and government officials, and further that
legislative law should be controlled by the higher law of the Constitution.
This was the meaning of the rule of law in the United States, and its more
complete realization in the Constitution of 1787 signified climax and
fulfillment of the Revolution.

The Framers' purpose must also be considered in relation to the threat
of national disintegration, either from internal discord or foreign
encroachment, that has traditionally characterized accounts of the "critical
period" in American history. The weakness of Congress in discharging its
responsibilities was surely an impediment to protecting American interests and
an embarrassment to patriotic men. Yet the belief that national disintegration
was imminent perhaps depends too much on the idea, born of subsequent crises,
that American nationality must be expressed through a strong central government
or else it cannot exist. Some degree of formal cooperation among the states was
necessary, but America could have existed as a plural nation, as it did in the
Confederation period (and to an important extent continued to do under the
Constitution). The problem in 1787 was not the threat of total rupture of the
Union attended by actual warfare among the states. The problem was the
character of American politics and government, or the nature and tendency of
republican government. Republicanism was the defining idea of the nation, and
without it we may say that America would no longer exist. The country was
growing in the 1780s as population expanded, economic development occurred,
westward settlement continued. Yet the state system of 1776 was incapable of
adequately accommodating and guiding this development. The states were too
strong for the good of republican principles, the Union not strong enough. By
restructuring the state system, by reconstituting the Union on a republican
constitution that crystallized tendencies in congressional-state relations in
the 1780s, the Framers sought to reform American government to the end of
securing the republican ideals of the Revolution.

We are so accustomed to thinking of constitutions as a reflection of,
and hence determined by, social forces that we tend not to consider that the
historical significance of the Constitution really was to demonstrate, as
Alexander Hamilton wrote in The Federalist #1, that men are "capable ...
of establishing good government from reflection and choice."15
Historical analysis may lead to the conclusion, for example, that the idea of a
constitution as a higher, fixed law appealed to colonial Americans as an
effective means of protesting imperial policy. Not so readily do we entertain
the view that the constitutionalism of 1787 was based on a sound understanding
of human nature, that it propounded valid principles of government, that it
possessed intrinsic and not merely instrumental value. These are normative
reflections more appropriate to political science, and an older political
science at that, than to history. In writing about constitutionalism, however,
it is hard categorically to deny a normative dimension, because the basic
questions — the effectiveness of limitations on government, abuses of
power, the nature of liberty — defy objective
measurement.16

Yet, while historical analysis need not judge whether the Framers
formulated a valid science of politics, it can employ as an evaluative
criterion the requirement that a constitution must recognize and conform to a
people's principal characteristics and nature. Considered from this point of
view the achievement of the Founding Fathers is undeniable. They created a
complex government of delegated and dispersed, yet articulated and balanced
powers based on the principle of consent. Confirmation of that principle was in
turn required by the Constitution in the cooperation and concurrence among the
branches of government that was necessary for the conduct of public business.
Made for an open, acquisitive, individualistic, competitive, and pluralistic
society, the Constitution ordered the diverse constituent elements of American
politics. More than merely a neutral procedural instrument for registering the
play of social forces, it was a statement of ends and means for maintaining the
principles that defined Americans as a national people. The Framers made a
liberal constitution for a liberal society.

That the nation has marked the bicentennial of the Constitution is
perhaps evidence enough of the Framers' success in establishing a new kind of
constitutional government. Yet formal continuity may conceal substantive
alterations. We need to ask how the higher-law and limited-power
constitutionalism expressed in the document of 1787 actually worked in
practice.

It is a striking fact, considering the unhappy outcome of most
revolutions and the high rate of failure of constitution makers in the
twentieth century, that the Constitution was not only formally ratified but
quickly accorded full political legitimacy. The state constitutions, while not
merely pretextual or facade documents, were not invoked and applied in the
actual conduct of government as the United States Constitution was. And the new
federal instrument was more than accepted: it rapidly became an object of
veneration. This "cult of the Constitution," as it has unappreciatively been
described by many students of American government, requires explanation.

Historians have offered a number of reasons for constitution worship,
including popular identification of the document with economic prosperity; the
Federalists' propagandizing to create an instant tradition of the Constitution
and inculcate public commitment to it; the people's need for a unifying social
myth and object of loyalty to replace monarchy as a course of authority. It has
further been argued that anti-Federalist critics of the document in the
ratification debate became its most vigorous supporters because of ideological
conditioning that led them to treat it as an ancient constitution requiring
literalistic defense to prevent political corruption. More broadly we may say
that the Constitution took deep and abiding hold on the American political mind
because it reflected a sober regard for the propensities of ordinary human
nature and the realities of republican society; created powerful institutions
capable of attracting men of talent, ambition, and enlarged civic outlook; and
introduced changes in the conduct of public affairs that most people saw as
improvements and that caused them to form an interest in the government it
created.

The Constitution stipulated institutions, rules, and procedures
embodying and symbolizing the principles of republican liberty, national unity,
and balance and limitation of power. It was a fixed, objective document that
could be consulted and applied, not a formless assemblage of principles,
statutes, and decisions carried about in men's minds and dependent on social
internalization for its effect. Yet the Constitution's principles and
provisions were general and ambiguous enough to allow of varying
interpretations. Liberty, union, and reciprocally limiting power meant
different things to different people, as did the rules and institutional
arrangements expressing and embodying them. At a superficial level this
circumstance produced conflict, but at a deeper level the effect was unifying.
For groups and individuals were encouraged to pursue political goals within the
framework of rules and requirements established by the Constitution. Thus the
document became permanent and binding. In the language of social science it was
an integrative mechanism. Only the most extreme groups in our history —
radical abolitionists and slaveholders in the nineteenth century, totalitarian
parties in the twentieth — have repudiated the Constitution as a
framework for political action.

The Constitution possessed force and effect because it was useful and
relevant to political life. Responsive to the social environment, it had
instrumental value. At the same time, repeated reference to the document as the
source and symbol of legitimate authority confirmed its intrinsic value, apart
from the practical results of specific controversies. People believed, in other
words, that it was important to follow the Constitution for its own sake or for
the common good, rather than for a particular political reason. The intrinsic
value of the Constitution lay not only in the wisdom and reasonableness of its
principles in relation to the nature of American society but also in the form
those principles were given in a written instrument. The effect of the
Constitution as binding political law has much to do with its textual
character.

The Framers addressed this issue in discussing "parchment barriers." The
state constitutions were evidence that written stipulations were no guarantee
of performance, especially when it came to limiting legislative power. Madison
in particular said it was not enough to erect parchment barriers in the form of
constitutional provisions stating that the legislative department must confine
itself to lawmaking. It was further necessary to arrange the interior structure
of government so that the constituent parts would limit each other. Personal
motives of ambition and interest, Madison reasoned, when linked with a
constitutional office would lead men to resist encroachments from other
departments. These were the "auxiliary precautions" (supplementing
accountability to the people) that would oblige government to control
itself.17 Madison was saying that pluralistic differences in opinion
and interest are necessary to make the prescriptions of the text function
effectively.

Nevertheless, American constitutionalism insists that the text of the
fundamental law be given its due. Madison's auxiliary precautions are in fact
rules written into the document. We may agree with an early writer who said
political legitimacy consisted "not in the words and letters of the
Constitution; but in the temper, habits, and the practices of the
people."18 But it is equally true that while the written text may
not be sufficient, it is necessary to achieve the purposes of
constitutionalism, or so it has seemed most of the time to Americans. In the
Constitutional Convention Rufus King said he was aware that an express
guarantee of states' rights, which he favored, would be regarded as "a mere
paper security." But "if fundamental articles of compact are no sufficient
defence against physical power," King declared, "neither will there be any
safety against it if there be no compact."19 The observation of Carl
J. Friedrich is in point: "The 'constitution' tends to become a symbol, and its
provisions become so many symbols in turn. It is this symbolic function of
words which makes the constitution a political
force."20

Reference to the constitutional text has been a fixed feature of
American politics. Its significance and effect have been variously estimated. A
long tradition of criticism holds that the document has failed to limit
government, especially the federal government in relation to the states. Others
argue that constant invoking of the Constitution has trivialized politics by
translating policy debate into legalistic squabbles that discourage dealing
with issues on their merits. Reformers seeking a more programmatic politics
have lamented that the Constitution by fragmenting power prevents responsible
party government. And still others contend that the Constitution has worked
precisely as intended: to eliminate genuine political action and make citizens
passive subjects interested in private economic pursuits rather than public
happiness and civic virtue.

These criticisms misunderstand the nature of constitutional politics and
hence the binding and configurative effect of the Constitution. If politics is
concerned with the end or purpose of political community, the proper role of
government, the relationship between the individual and society, then it is
difficult to see how the Constitution can be said to have brought an end to
politics or prevented political action. As an expression of modern liberalism,
however, the Constitution did signify a change in the nature of politics. To
elevate natural rights into constitutionally protected civil rights, as the
Framers did, was to discourage an older politics based on the pursuit of glory,
honor, conquest, and political or religious truth, as well as a newer
ideological politics born of modern revolution. The Framers' constitutionalism
was a way of organizing political life that paradoxically placed certain
principles, rules, and procedures beyond politics, according them the status of
fundamental and paramount law. Premised on the idea that citizens could pursue
private interests while preserving community, it was intended to limit the
scope and intensity of politics, preventing a total absorption of society that
would impose tyranny in the name of ruler, party, people, or community.

Starting in the 1790s and continuing with remarkable continuity to the
present day, public policy advocates have charted courses of action with
reference to the Constitution. Using constitutional language firmly embedded in
political rhetoric, such as due process of law, equal protection of the law,
and the separation of powers, et cetera, they invoke its principles and values
to justify their goals, argue over the meaning of its requirements, and align
themselves with its manifest tenor as explicated in constitutional law and
legislation. Political leaders do this not because they are unwaveringly
committed to a specific constitutional principle; in different circumstances
they may advocate a different principle. The decisive fact is the high public
status accorded the Constitution: policy makers and political actors know that
the people take the Constitution seriously, regard it as supreme law, believe
it is powerful because embodying sound principles of government and society's
basic values, and, indeed, venerate it. Aware of this popular prejudice in
favor of the Constitution, and seeking the approval of public opinion,
political groups and individuals are constrained to act in conformity with its
provisions. Thus the Constitution as binding political law shapes the form and
content of policies and events.

The constraining effect of the Constitution might nevertheless be
questioned, for it will appear obvious that while some requirements are
unequivocally clear (for example, the minimum age of the president), many
provisions are ambiguous and imprecise in meaning. Facing this fact, many
scholars have concluded that there is no single true meaning of the
Constitution, rather several possible readings none of which possesses
exclusive legitimacy. Some contend there is no real Constitution against which
arguments about it can be evaluated, only different assertions as to what the
Constitution is at any given time, or what we want it to be. Expressed in the
oft-cited statement that the Constitution is what the Supreme Court says it is,
this view, carried to its logical conclusion, would mean that the American
Constitution is a developing, evolving, growing thing that is changed by the
actions of judges, lawmakers, and executive officers. In that case the
Constitution ceases to be a fixed, prescriptive, paramount law.

Politically and historically realistic as this analysis appears, it has
never been accepted as legitimate in constitutional theory or in the conduct of
constitutional politics. From the standpoint of the people and their
representatives, the Constitution, in both its procedural requirements and
essential principles, has a true, fixed, ascertainable meaning. This popular
understanding has existed from the beginning of constitutional politics in the
debate over ratification, and it will probably continue until the popular
belief that the Constitution as a document says what it means and means what it
says is eroded or superseded by a more sophisticated view of the nature of
texts and political language. There is still a strong tendency in public
opinion to think that written constitutions, in Jefferson's words, "furnish a
text to which those who are watchful may again rally and recall the people:
they fix too for the people principles for their political creed."21

The importance of the constitutional text in American government has
been raised anew in recent years in the controversy over original-intent
jurisprudence. Many legal scholars have expressed doubt about the wisdom and
legitimacy of consulting the original intent of the Constitution or its authors
in settling constitutional disputes. The words of the text, it is argued, apart
from anything that its authors may have written or said about its meaning, must
be considered as expressing the original intent. And the text must be read and
understood according to the accepted meaning of words in the interpreter's own
time, place, and historical situation.22 Some dispose of original
intent more directly by asserting that constitutional interpretation need not
be bound by the constitutional text, but may be based on fundamental social
values and conceptions of justice and moral progress that judges are specially
qualified to understand and apply. Either way, the Constitution is assured of
its status as a "living document" adaptable to changing social conditions.

Although there may be sound reasons for disconnecting constitutional
politics from original intent, from a historical standpoint it seems clear that
neither the Framers nor the people over 200 years have taken so narrow a view
of the meaning and relevance of original intent. The purpose of making a fixed,
objective constitution was to decide the most important basic questions about
politics and government once and for all — or until the people changed
their mind and amended the document. The idea was to bind future generations in
fundamental ways. This purpose would be defeated if those who later ran the
Constitution were free to substitute their own definitions of its key terms.
Yet the fact remains that constitutional principles and rules have been
reinterpreted and redefined, in apparent contradiction of the Framers' intent,
in decisions and statutes that have been accepted as politically legitimate.
The Supreme Court has in a sense acted as a continuing constitutional
convention.

Although the Founding Fathers intended the Constitution to be permanent
and binding, the language of the document cannot realistically or reasonably,
in a categorical sense, be frozen in its eighteenth-century meaning. It is the
Constitution's essential purposes, its fundamental principles and procedures
that were not intended to change. The question to be asked is whether
fundamental principles and values — the values of individual liberty,
national union, distributed and balanced power, the consent of the people
— can be defined in an authoritative text and thereby realized in public
law and policy to the satisfaction of the political community. American
political history generally provides an affirmative answer to this question.
But it is important to remember that an overriding imperative in American
politics, law, and government has been to reconcile public policy with
constitutional principles and rules as embodied in the text and in accordance
with the Framers' intentions. Moreover, original intent has not been viewed in
the narrowly positivistic manner urged by current critics of original-intent
jurisprudence. The text was thought to have a definite and lasting meaning, and
speeches, writings, and letters of the authors of the Constitution have always
been thought pertinent to the task of elucidating its meaning. Whatever the
practical effect of dismissal of the text and repudiation of original intent
would be, such a step would alter the historic character of American
constitutionalism.

The issue of original intent is pertinent to the larger question of the
purpose of the Constitutional bicentennial. What is it that we seek in study
and commemoration of the Constitution? In a sense the purpose is the same that
informs all historical investigation, namely, the desire to learn how things
came to be as they are. Yet commemoration of the founding has implications
different from other historical celebrations and remembrances because the
Constitution is peculiarly and directly relevant to public life. Historical
knowledge about it therefore acquires special political significance. Of course
any number of politically interested purposes may be served by facts about the
founding, including defense of the original-intent position in the contemporary
debate over constitutional adjudication. Broadly conceived, however, the
bicentennial may be viewed as having the fundamental purpose of clarifying and
confirming the meaning of American nationality.

Diverse in ethnic, religious, cultural, and social characteristics,
Americans were united in 1776 by the political principles set forth in the
Declaration of Independence. Inchoate though it was, the new nation was defined
by these principles — liberty, equality, government by consent, the
pursuit of happiness as an individual right — which in various ways were
written into the state constitutions. By establishing a republican government
for the nation, the Framers of the Constitution confirmed these principles,
completing the Revolution and making it permanent. Since then American politics
has derived from and been shaped by the Constitution and has periodically been
renewed by popular movements resulting in electoral realignments that have
included a return to the first principles of the founding as an essential
element. After more than 200 years the United States may be old enough and
sufficiently secure in its national identity to exist apart from the political
principles that marked its appearance in the world. On the other hand, it may
not be, in which case the nation still depends for its existence on preserving
the principles of the founding. And when one reflects that a great deal of
writing about the Constitution has been shaped by attitudes hostile to the
Framers, such as those of the Beardian school, the possibility of gaining
useful insight into the nature of our fundamental law through historical
investigation warrants serious consideration.

Bicentennial activities focused attention on the text of the
Constitution, and this as a matter of course. (The American Political Science
Association and the American Historical Association, in describing their
conjoint Project '87 for commemorating the Constitution, stated that its
purpose was to promote "public understanding and appraisal of this unique
document.") From a social science point of view the documentary character of
the Constitution is easily exaggerated; the internalization of principles and
values in officials and citizens is seen as the essential thing in achieving
constitutionalist purposes. Looked at in this light, the American Constitution
is not and never has been simply the text of the Constitution, but consists in
addition in concepts not expressly written in the document, such as the rule of
law or the presumption of innocence, as well as institutions and practices that
derive from political sources, such as the party system. From the standpoint of
public opinion, however, legitimacy in American government still appears
dependent upon or derived from direct reference to or necessary inference from
the text of the Constitution. Perhaps the text-based constitutional order, in a
society as open, pluralistic, and dynamic as the United States, has been an
obstacle to the kind of internalization of values that characterizes English
political life. After 200 years Americans still seem to be constitutional
fundamentalists in regarding the text and original intent as conclusive of
legitimate authority. Or perhaps we should say that while a narrow, legalistic
textualism has not been the dominant characteristic of constitutional
government in America, when an issue is made of the constitutional text the
people will insist on the indispensable documentary foundation of
constitutionalism.

Understanding this attachment to the constitutional text has often been
difficult for scholars and intellectuals, who tend to disparage it as
Constitution worship. Perhaps reverence for the Constitution expresses not so
much a naive literalism, however, as an awareness of the act of foundation as a
source of authority. Considered in this perspective the constitutional text
stands for the founding, and the principles written into the document
symbolically represent values evident in the actions of the Framers. The
founding required rational discussion, deliberation, compromise, and choice;
consent, concurrence, and mutual pledging. These procedural values are embodied
in constitutional provisions which require government under a fixed
institutional structure and by deliberative processes that depend on compromise
and concurrence, in accordance with substantive principles of natural rights,
consent, and limited and balanced power.

We study the making of the Constitution for the same reason Americans
have always turned to the founders: to strengthen and preserve our character as
a free people, to continue on a course that has brought us prosperity as a
nation. In a world in which governments that impose tyranny on their people are
described by some as democracies, we study the founding in an effort to achieve
the substance of liberty and natural rights that we believe it is the purpose
of government to secure. Ultimately, commemoration of the Constitution
expresses the belief that the principles, institutions, and procedures of free
government cannot be maintained if divorced from the purpose, intention, and
spirit of the Framers of our fundamental law.

16 Observing that the purpose of constitutional government is to prevent
tyranny, and that the exact definition of where tyranny begins is difficult to
establish, M. J. C. Vile writes "There are inescapable value-judgments here,
and we must accept that a discussion of constitutionalism can only begin by
pointing to certain specific examples of societies which are asserted to be
non-tyrannical, and to attempt to elucidate their major characteristics,"
Constitutionalism and the Separation of Powers (New York, 1967), p. 308.